Fashion Raises Game in Growing Battle

Susan Scafidi in WWD, September 09, 2010

Media Source

By Alexandra Steigrad and Liza Casabona

NEW YORK — As designers take to the New York runways with their spring 2011 collections, they’re thinking about pirates.

With their creations splashed around the world via the Internet within seconds after the end of their shows, intellectual property violations, trademark infringement and counterfeiting are more rampant than ever. The crisis has raised the industry’s legal challenges to the forefront and has served as a call to action.

Among the solutions are the opening of the world’s first Fashion Law Institute at New York’s Fordham Law School and the introduction in Congress of the Innovation Design and Piracy Prevention Act, a bill that would extend copyright protection to fashion designs.

Diane von Furstenberg, designer and president of the Council of Fashion Designers of America, on Wednesday banged a gavel tied with a pink ribbon to ceremonially open the institute. “As a designer who has been around for a long, long time, I can tell you, a lawyer who understands fashion is a very important thing,” von Furstenberg said. “As a designer, you have to protect yourself in so many ways…there are so many reasons a designer needs a lawyer and, for a young designer, it’s even more important.”

The importance of educating designers and training lawyers in matters concerning fashion and retail played a major role for von Furstenberg, who matched the CFDA’s donation to the institute of $50,000. With $100,000 already in the bank, the institute hopes to raise $1 million in its first year.

Founded by Fordham Law professor Susan Scafidi, the institute will provide a curriculum that will deal with legal and related issues facing designers, such as intellectual property and trademark rights, counterfeiting, copyright, finance, international trade and government regulation—even consumer culture and civil rights. Classes will not only be open to law students but also to emerging designers. Additionally, the institute will offer public seminars and programs on issues of interest to members of the legal and fashion communities, said Scafidi, who will serve as the institute’s academic director.

“The CFDA’s invaluable support and advice will help ensure that the Fashion Law Institute is able to provide a resource and research platform to law students, fashion houses and especially emerging designers, who may not be able to afford the legal counsel that is so important to developing a business,” Scafidi said, noting the fortuity of the school’s Manhattan location, “literally right across the street from Lincoln Center, the new home of fashion week.”

“The institute places Fordham at the forefront of this newly defined field of law,” added Fordham Law’s interim dean Michael Martin.

The New York fashion industry employs “nearly 200,000 people at over 800 fashion companies,” said Martin. “The opening of the Fashion Law Institute will be a huge asset to this juggernaut industry and will be a tremendous resource for law students throughout the country.”

With the gavel down and the institute in session, the fashion world awaits the Senate’s vote on the piracy bill now in Congress, which was introduced by Sen. Charles Schumer (D., N.Y.).

Broad industry support — from the CFDA to the American Apparel & Footwear Association, as well as bipartisan support from six Democratic and four Republican co-sponsors in the Senate — has increased the bill’s prospects for passage, Schumer told WWD.

“I’m very hopeful that we can get [the bill] passed in the next three weeks in the Senate before we adjourn,” he said, adding that even the midterm elections in November are unlikely
to interfere with this outlook.

If passed, the legislation would extend copyright protection to “unique and original” designs for a period of three years. The bill only covers “deliberate copies that are substantially identical to the protected designs.” All designs created in the public domain prior to enactment of the bill would be exempt, and protection extends automatically to designs without registration. Consumers would not be held liable for purchasing “illegal” copies, and retailers would only be liable if they induced manufacturers to produce illegal copies, not for selling them.

“This bill took a long time in coming because it was a very careful balance between the fashion designers and the retailers,” Schumer said. “I think we’ve thread the needle very well. We protect the intellectual property that deserves to be protected, but we guard against frivolous lawsuits.”

In the coming weeks, Schumer said his office, as well as apparel companies and designers, will be approaching senators from their various states.

“Every day we get a little more support,” he said.

“It’s all about timing with the different sides. It should be a very quick and noncontroversial issue,” Scafidi said, adding that, despite some “philosophical opposition,” the “centrist bill” should pass the Senate prior to its October adjournment, but even if it doesn’t, a similar bill “will pass eventually.”

Support is not universal. Critics argue the bill gives an unfair advantage to established designers and hands them a tool that could be used against young, new designers who have fewer legal resources to fight infringement charges.

The California Fashion Association voted last Thursday against supporting the bill, said Ilse Metchek, the association’s executive director. Copyright disputes would be settled in court
under the new legislation, which is a significant financial burden, she said. The California Fashion Association is not a lobbying firm, she said, but the group is preparing a position paper outlining its opposition and plans to talk to as many members of the Senate Judiciary Committee and the California caucus as it can.

“It’s a bad bill for the industry,” Metchek said. “The financial ramifications are enormous.”

The National Retail Federation and the Retail Industry Leaders Association, two major retail trade associations, have yet to take positions on the legislation.